1905 SPENCER, WHATLEY & UNDERHILL v. FORSTER & Co. and taken in such court as if the action had been originally commenced therein "; and it seems to me that those words must have been intended to give to the county court judge the same powers of amendment in a remitted action as he would have had if the action had been commenced in the county court. I think, therefore, that it is not correct to say that the Lord Alverstone powers of amendment in a remitted action are restricted in the manner contended for by the defendants. This view is supported by the language of s. 87, which says that "all such amendments as may be necessary for determining the real question in controversy between the parties shall be so made, if duly applied for." It is said that the result of allowing an amendment in a remitted action by which the claim is converted into one for unliquidated damages might be to inflict a hardship on the defendant in the matter of the High Court costs, which the county court judge has no power to deal with; but I am inclined to think, though I express no final opinion on the point, that as a condition of allowing the amendment the county court judge might impose terms on the plaintiff with regard to the payment of the High Court costs. I should be unwilling to hold, unless the language of the Act clearly compelled me to do so, that where an action is remitted the county court judge can only try it in the form in which it comes to him from the High Court, and in view of the words in s. 65 to which I have referred I am loth to restrict the very salutary powers of amendment given to judges by s. 87 of the Act. For these reasons I am of opinion that this appeal must be allowed. KENNEDY J. I am of the same opinion, and I agree with the judgment of my Lord. The point is a difficult one, and has been put with much force and clearness by counsel for the defendants; but I confess I should be very sorry to have to come to any other conclusion. Speaking for myself, I should like to add a few observations from one point of view. The argument for the defendants largely depends on certain ill results which it is said might result if, after an application for VOL. I. 1905. 2 H 2 C.J. 1905 SPENCER, WHATLEY & v. FORSTER & Co. judgment under Order XIV., an action is remitted and then an amendment is applied for in the county court by allowing UNDERHILL a claim for unliquidated damages to be substituted for the claim as originally indorsed on the writ. But this is really only a small part of the general question, and to confine the Kennedy J. argument to cases under Order xiv. prevents the whole question from being considered. If the argument is good, then it follows that in a case where there have been no proceedings under Order XIV., and where the order to remit has been made on the application of the defendant himself, if it should appear at the trial that the claim ought to have been for unliquidated damages, the defendant might successfully resist an application to amend on the ground that there is no power to remit an action for unliquidated damages. We are asked to hold that in the case of a remitted action, which at the time of remittal must be treated as a liquidated claim, the plaintiff can never amend so as to claim unliquidated damages, although s. 65 expressly states that the action is to be tried as if it had been originally commenced in the county court, and under s. 87 the county court judge has the most ample powers of amendment for the purpose of determining the real question in controversy between the parties. I think it would be a flaw in the administration of justice if we were compelled to give effect to the defendants' contention. Of course terms may be imposed as a condition of leave to amend, and I agree with what my Lord has said on this point, though I should be unwilling to impose any terms unless there were grounds for supposing that the defendant had really been misled, for it does not seem to me likely that any substantial case of injustice would arise. RIDLEY J. I agree. I think the point is a difficult and arguable one; but, as the ground has been covered by the judgment of my Lord and Kennedy J., I do not desire to add anything to what they have said. Solicitor for plaintiffs: Percy W. Taylor. Appeal allowed. F. O. R. WOLFE v. CLERK OF THE COUNTY COUNCIL OF SURREY. REEVE v. THE SAME. Parliament - Franchise ·County Vote- Qualification Freehold Benefice- The vicar of a parish, constituted under the Church Building Acts and situate within the limits of a parliamentary borough, who receives the pew-rents as part of his stipend, is not the occupier of the church within the meaning of s. 24 of the Representation of the People Act, 1832, and is not deprived by virtue of that section of his right to a vote for the county in respect of his freehold benefice. Legal possession of the freehold of a church by the vicar, coupled with the receipt of pew-rents, is not sufficient to create an occupation within s. 24; to create such an occupation there must be actual, as well as legal, possession. CASES stated by the revising barrister for the Wimbledon Division of the county of Surrey, which involved similar points and were argued together. WOLFE v. CLERK OF THE COUNTY COUNCIL OF SURREY. In this case the Rev. E. J. Wolfe claimed a county parliamentary vote for the Wimbledon Division of Surrey in respect of his freehold benefice, St. Thomas's, Telford Park, Streatham. The claim was duly objected to, and disallowed. The vicarage of St. Thomas's was a new district parish or chapelry cut out of the new parish of Christ Church in the ancient parish of Streatham, in the Streatham ward of the metropolitan borough of Wandsworth and the Clapham Division of the parliamentary borough of Battersea and Clapham. The claimant lived in his dwelling-house, which was in the parish of St. Thomas in the said parliamentary borough. The deed of consecration, dated December 21, 1902, recited 1901 Nov. 18, 21; Dec. 19. 1904 WOLFE CLERK OF SURREY COUNTY COUNCIL. REEVE V. that, whereas the minister, churchwardens, and certain inhabitants of the parish of Christ Church had represented to the bishop that by deed, dated March 30, 1899, made between Lees Knowles of the one part and the Ecclesiastical Commissioners of the other part, a piece of land was conveyed to the Ecclesiastical Commissioners and their successors to be held THE SAME. for the purposes of certain of the Acts of Parliament for building churches, and to be appropriated as the site of the then intended new church of St. Thomas, with the surrounding yard and inclosure thereto belonging; that a commodious building was erected thereon and completed and fit for divine service; that it was intended that the church should be enlarged as soon as practicable, and that when so enlarged it would contain 850 sittings, of which 300 sittings were to remain for ever free and unappropriated; that by deed dated November 1, 1899, the right of patronage and nomination of the intended new church of St. Thomas was to be vested for ever in certain trustees parties to the last-mentioned deed; that the ministers and churchwardens of Christ Church had besought the bishop to consecrate the building as and for a church; the deed then declared the building to be duly consecrated. The deed contained no reference to sittings or pews save as above stated. The claimant was duly inducted into the vicarage by deed dated December 29, 1903, which recited that the vicarage of St. Thomas, Telford Park, was constituted by an order of His Majesty in Council dated July 9, 1903. The Order in Council stated that the Ecclesiastical Commissioners, acting in pursuance of 59 Geo. 3, c. 134; 2 & 3 Vict. c. 49; 3 & 4 Vict. c. 60, and 19 & 20 Vict. c. 55, assigned a district chapelry to the consecrated church of St. Thomas in the new parish (sometime chapelry district) of Christ Church. The boundaries of the district chapelry of St. Thomas were defined by the order. The order assigned to the minister of the chapelry all the fees for marriages, baptisms, churchings, and burials, the effect of which was to constitute St. Thomas a parish by statute. The Order in Council contained no reference to churchwardens or to sittings or pews. The freehold of the piece of ground constituting the site of the church and the surrounding yard and the inclosure thereto belonging vested in the claimant on induction as vicar of the new parish. 1904 WOLFE v. CLERK OF SURREY COUNTY COUNCIL. REEVE บ. The church, which had not been enlarged since the date of consecration, was fitted with sittings or pews consisting of rows of benches open at the ends and fixed on the floor; each THE SAME. bench was numbered and had room for several sitters. The sittings were let, one or more, to any person applying for them for half a year and not longer, no pew or seat being sold outright; they were let in writing, specifying the number of the pew or sitting and the price; they were let for use during the ordinary public services only, and not for additional or special or semi-private services; and if the seatholders were not in their places at the commencement of divine service the claimant, or those acting for him, could put strangers into the seats that were let but not occupied. The letting was actually done by the churchwardens; the claimant's churchwarden collected the seat money, and handed it over to the claimant, less cost of collection, for the claimant's own use and benefit. The amounts collected from the letting of seats did not appear in any of the parish accounts. All the sittings were letable, but in fact many were not taken. There were at present no declared free places in the church. The scale of rents for sittings was fixed by the claimant in consultation with the churchwardens, and the receipts for pew-rents had been at the rate of 40l. a year. Before the claimant was instituted or inducted into the living a number of questions were put to him in print or writing, and he answered them, returning the paper to the registry of the diocese. Some of the questions related to the sources from which the claimant's income might come, and he made it plain by his answers that he should look to the letting of seats for part of his income. There was no residence attached to the living or benefice; there was no glebe or tithe, and there was no income from land, unless or save as above appears. No documents were produced before the revising barrister, |